If your facility has a significant accidental release of a hazardous chemical, your team will need to respond immediately, particularly if the release threatens the public, workers, or the environment. But don’t forget to report the release to the relevant governmental agencies right away. Starting March 23, 2020, add one more agency to the list of those that may need to be notified – the Chemical Safety and Hazard Investigation Board (CSB).

CSB has published a final rule on Accidental Release Reporting, 40 C.F.R. Part 1604. It requires the owner or operator of a stationary source to report promptly to CSB any qualifying accidental release of an extremely hazardous substance into the ambient air. 

As discussed below, the publication of this rule is intended to fulfill a long-standing requirement imposed by Congress in the CSB’s enabling statute. The purpose of the rule is to ensure that the CSB obtains information it will need to assess whether the CSB has jurisdiction over an accidental release incident and if so whether it should deploy its resources. Here are brief details on the new reporting requirement:

• When the reporting requirement takes effect:  The rule is effective on March 23, 2020. However, CSB is providing a one-year grace period, until March 23, 2021, during which it will “refrain from referring violations for enforcement, unless there is a knowing failure to report.” CSB expects affected entities to use the grace period to educate their employees about the reporting requirement and establish internal reporting procedures.
• When reports are due:  Either within 30 minutes of notifying the National Response Center (NRC) of the release pursuant to the requirements of 40 C.F.R. § 302.6 (the CERCLA reporting rule), or, if no such report is made to the NRC, within 8 hours of the release. Note that a timely report to NRC does not satisfy the CSB notification requirement.
• Who must report:  The obligation to report is placed on the owner or operator of a stationary source. “Owner or operator” is defined to include any person or entity that owns, leases, operates, controls, or supervises a stationary source. Where there are multiple owners or operators at a facility, they may agree among themselves which one will submit a single, consolidated report on behalf of them all.
• What must be reported:  Any accidental release resulting in a fatality, serious injury, or substantial property damage.
  • An accidental release is defined in the same way as in the enabling statute, as an unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source. CSB has clarified that “ambient air” can include air inside a stationary source (i.e., it does not have to be unconfined air space).
  • What qualifies as an “extremely hazardous substance”:  Any substance that may cause death, serious injury, or substantial property damage. The term includes, but is not limited to, chemicals included on EPA’s list of regulated substances under its Risk Management Program (RMP) regulations, 40 C.F.R. § 68.130, or on EPA’s list of extremely hazardous substances under the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA), 40 C.F.R. Part 355, Appendices A and B.
  • What constitutes a serious injury or substantial property damage:  “Serious injury” is defined as any injury or illness that results in a death or inpatient hospitalization at a hospital or clinic for care. “Substantial property damage” is defined as estimated property damage at or outside the stationary source that is equal to or greater than $1 million. CSB indicates that loss of use and business interruption are to be considered in estimating the value of damages.
• No quantitative threshold for reporting:  Unlike many other release reporting requirements, which are triggered by exceeding quantitative thresholds for the amount of a substance released, the CSB notification requirement has no such thresholds. Instead, it is triggered by events – a death, serious injury, or substantial property damage. It is thus similar to OSHA’s reporting requirement for workplace fatalities, hospitalizations, and other serious outcomes of an accident.
• What information must be reported:  If a report has been made to NRC, only the NRC identification number for that report must be provided to CSB. Otherwise, provide the following information to CSB as applicable and available:
  • Name and contact information for the owner or operator and for the person making the report.
  • Approximate time of the release.
  • Brief description of the release.
  • Indication of whether there has been a fire, explosion, death, serious injury, or property damage.
  • Name of the substance released, including its CAS number or other identifier.
  • If known, the amount of the release, the number of fatalities and serious injuries, and estimated property damage.
  • Whether an evacuation order has been issued, the number of people evacuated, the approximate radius of the evacuation zone, and the type of persons evacuated (e.g., general public, site workers).
• How to report:  By email to [email protected] or by calling 1-202-261-7600.
• Updating initial reports:  An owner or operator may revise or update a report within 30 days of the initial report, but updates are not required. Send updates to [email protected] or to CSB’s offices at 1750 Pennsylvania Avenue, N.W., Suite 910, Washington, DC  20006. A revised report may be submitted up to 90 days following the initial report with an explanation as to why the revision could not have been submitted within the first 30 days.

CSB adopted the rule reluctantly. Congress directed CSB to adopt a reporting rule for accidental releases 30 years ago, in the CSB’s enabling statute that was contained in the Clean Air Act Amendments of 1990, in section 112(r)(6)(C)(iii). After prodding from the Inspector General of the Department of Homeland Security in 2004 and the Government Accountability Office in 2008, CSB published an advance notice of proposed rulemaking for a reporting requirement in 2009, but did not follow up with a proposed rule. Ten years later, a court ordered CSB to adopt a final reporting rule within one year. Air Alliance of Houston v. CSB, 365 F. Supp. 3d 118 (D.D.C. Feb. 4, 2019). CSB published a proposed rule on December 12, 2019. The CSB Interim Executive signed the final rule on February 3, 2020.

Facilities should begin training their employees on the new requirement and integrating this CSB requirement into their work practices for notifying agencies about accidents. As a reminder, federal regulatory notification requirements that may apply in addition to this new rule include, among others:

• Notification to NRC under 40 C.F.R. § 302.6 of a release of a hazardous substance in excess of the relevant threshold.
• Notification to NRC under 40 C.F.R. Part 355, Subpart C of a release of an EPCRA extremely hazardous substance or CERCLA hazardous substance in excess of the relevant threshold.
• Notification to NRC under 49 C.F.R. § 191.5 of an incident at a gas pipeline or underground gas storage facility.
• Notification to NRC under 49 C.F.R. § 195.52 of an incident at a liquid pipeline.
• Notification to NRC or EPA under TSCA § 8(e) of an emergency incident of environmental contamination.
• Notification to OSHA under 29 C.F.R. § 1904.39 of worker fatalities or serious injuries.

Beveridge & Diamond counsels clients on a wide range of matters relating to the Clean Air Act’s Risk Management Plan requirements, OSHA Process Safety Management requirements, and the general duty clauses under both the Clean Air Act and the Occupational Safety and Health Act of 1970. Our clients include companies in the petroleum refining, midstream gas processing, pipeline, acid manufacturing, fertilizer manufacturing, other chemical manufacturing, and chemical storage/warehousing sectors.  Our work includes compliance strategies, assistance with program development and implementation, emergency response, internal investigations, and enforcement defense.  For more information, please contact the authors.